Who Has The Right? The Militia or The People?

[grandpapeepap]

i am the militia by us code, so suck it nerds

 

[treelogger]

i am the militia by us code, so suck it nerds

Do you conclude from your statement that people who are not in the militia have no 2A rights? That would exclude most women, people over 45, and permanent resident non-citizens.

The prefatory clause is troubling, in all (political) directions. If you take it too seriously, you end up with the crazy thing I just wrote. You also end up with Miller, meaning only those weapons typically kept at home and in private possession yet suitable for militia use are protected under the 2A. If you don't take it seriously enough (like Scalia did in Heller), a new purpose of the 2A needs to be constructed to be able to interpret it. And that purpose is then just as likely to be right as wrong. See the intellectual jump required to go from Heller to Bruen, since suddenly the only purpose of the 2A that is enshrined in precedent (self defense in the home) was no longer sufficient.

Actually, all of the 2A is highly troubling as written. In reality, it is casuistic, an (over-) reaction to the excesses of the British trying to disarm the colonials. If the 2A and 3A were simply written as "Don't do what King George did", it would at least be clear what their real purpose was. Now it is 250 years later, we're no longer disenfranchised by military might, and we're no longer fighting to free our colonies from far-away and totalitarian rule. But somewhere underlying the 2A and the 3A are some important legal principles, for example that everyone has a right to life and liberty, and therefore to defend themselves against violence, and a right to enjoy the happiness of their possession, including a home without soldiers quartered in it. But instead of thinking through those underlying principles (and when/how/where/... they are applicable), we argue over the minutiae of what caliber the muskets were around 1770 (I'm exaggerating for comedy here, but not much).

And political grandstanding doesn't make it any better. On one side people claim that only guns turn a weakling into a real red-blooded American. On the other side people claim that all guns are evil. Both sides are wrong.

 

[adrkwan]

But to the point, I don't think that anyone involved in writing or voting on the bill of rights would have expected it to remain further un-amended if there were such large holes in the interpretations. It's essentially decided by 5 people at this time. And they have already decided that missile launchers are NOT arms that the people can possess without actually giving a good definition of what arms are.

I think these two perspectives show the problem with Originalism. You get vastly different outcomes based on each person's subjective beliefs.

 

[CadeH]

Do you conclude from your statement that people who are not in the militia have no 2A rights? That would exclude most women, people over 45, and permanent resident non-citizens.

The 14th amendment's equal protection clause extends it to women and people over 45, and probably permanent non-citizens.

since suddenly the only purpose of the 2A that is enshrined in precedent (self defense in the home) was no longer sufficient.

Heller doesn't say that self defense is the only thing protected by 2A, it is just one example given of a lawful purpose. Lower courts have willfully misinterpreted the below statement for that argument

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home"

If Heller was stating that self defense within the home is the only lawful purpose then it would read "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for the traditionally lawful purpose of self-defense within the home"

 

[treelogger]

The 14th amendment's equal protection clause extends it to women and people over 45, and probably permanent non-citizens.

I hope that your argument is correct. Alas, it isn't universal. So why do people on non-immigrant visas not have that EP? There is a large gray zone here.

Heller doesn't say that self defense is the only thing protected by 2A, it is just one example given of a lawful purpose.

But it is the only example that is worked out. Another large gray zone.

 

[Gawernator]

I hope that your argument is correct. Alas, it isn't universal. So why do people on non-immigrant visas not have that EP? There is a large gray zone here.


But it is the only example that is worked out. Another large gray zone.

Which attorney general did you vote for? Just curious

 

[RustVendor]

I think these two perspectives show the problem with Originalism. You get vastly different outcomes based on each person's subjective beliefs.

Yep, even with the latest case on the "vampire rule", Wolford, the state of Hawaii provided historical laws that prohibited bringing arms onto private property. And even though I like the outcome because I do CCW and it will make it easier, it's hard for me to reconcile how the majority opinion waved away those historic laws so easily. Instead the majority opinion largely focused on how annoying it is for a CCW carrier to go throughout their day if they cannot carry into normal everyday establishments. I think that is a perfectly good argument on it's own, you are obviously de facto barred from carrying your weapon during normal day to day tasks if you can't go into any stores and especially gas stations etc. But if we look at the 18th century vs today, there wasn't even a concept of "publicly accessible private lands" in the same way that there is today. Back then you could restrict races or genders or whatever you want from your store at your whim and only through modern protections do we even have these kinds of spaces that allow access to all as base line. From a purely originalist perspective, the Bruen test as well as historic property rights are thrown out in Wolford in favor of a modern practical interpretation. So while I agree with it, it's very hard to be enthusiastic about the legal reasoning behind it. In previous 2a cases, the dissenters were the ones making the "practical" arguments that certain restrictions on guns should be allowed due to public safety concerns etc. So it's now completely inconsistent.

 

[Gawernator]

Yep, even with the latest case on the "vampire rule", Wolford, the state of Hawaii provided historical laws that prohibited bringing arms onto private property. And even though I like the outcome because I do CCW and it will make it easier, it's hard for me to reconcile how the majority opinion waved away those historic laws so easily. Instead the majority opinion largely focused on how annoying it is for a CCW carrier to go throughout their day if they cannot carry into normal everyday establishments. I think that is a perfectly good argument on it's own, you are obviously de facto barred from carrying your weapon during normal day to day tasks if you can't go into any stores and especially gas stations etc. But if we look at the 18th century vs today, there wasn't even a concept of "publicly accessible private lands" in the same way that there is today. Back then you could restrict races or genders or whatever you want from your store at your whim and only through modern protections do we even have these kinds of spaces that allow access to all as base line. From a purely originalist perspective, the Bruen test as well as historic property rights are thrown out in Wolford in favor of a modern practical interpretation. So while I agree with it, it's very hard to be enthusiastic about the legal reasoning behind it.

The racism laws against black slaves carrying and anti-poaching laws, so relevant loooool. This is such a legal stretch it borders on comedy.

 

[Gravel]

I like this thread, it brought out some great insight into how people think..

I’m backing out so as to not feed any trolls

 

[FonzV88]

The issue though is that every modern Supreme Court decision since Heller has stated that "2nd amendment rights are not unlimited" and identify that you "cannot have any weapon whenever and wherever you want" (opinion of Cons. justice Scalia) and further identifies that "sensitive places" are fully legal to prohibit firearms. Bruen has one of the more annoying statements by Conservative Justice Kavanaugh that the permitting regimes in places like NY and Ca are fully Constitutional to remain in place (in NY you have to have a permit just to get a firearm at all and it takes as long as getting a CCW). What Ca does to restrict firearms and CCW sucks, costs us money are are largely ineffective, but they do so at the permission of these SC decisions. "Rights" are a function of the state and the state decides what they mean, and they never mean what the plain text says and we have seen that over and over in just about every recent SC case not just the 2a ones. You don't have a right unless the state protects it.

The people are the militia

 

[RustVendor]

The people are the militia

non-government Militias are illegal in all 50 states

 

[RustVendor]

The racism laws against black slaves carrying and anti-poaching laws, so relevant loooool. This is such a legal stretch it borders on comedy.

it sounds like you don't understand the arguments that were made in the case. I think this review explains the issues pretty well: https://www.stanfordlawreview.org/online/property-v-guns-the-level-of-generality-problem-in-wolford/

 

[FonzV88]

non-government Militias are illegal in all 50 states

Says the government...

 

[Gawernator]

it sounds like you don't understand the arguments that were made in the case. I think this review explains the issues pretty well: https://www.stanfordlawreview.org/online/property-v-guns-the-level-of-generality-problem-in-wolford/

I’m familiar with the level-of-generality argument. It’s an academic critique of Bruen’s methodology, not a statement of what Wolford actually held.


The issue wasn’t whether those historical laws existed. It was whether they were relevantly similar under Bruen’s “how and why” test. The majority concluded they were not. Hawaii argued the hunting laws reflected a broader tradition of regulating armed entry onto private property; the Court disagreed and held they were not sufficiently analogous to a modern default rule that effectively prohibits licensed self-defense carry at businesses open to the public.


As for the Black Code analogue, the Court expressly rejected giving weight to a Reconstruction-era law enacted to disarm freed slaves. Whether scholars think the majority chose the wrong level of generality doesn’t change the fact that the Supreme Court rejected those analogies.

Just because you think that the courts should be able to restrict our rights based on racist black code laws doesn’t mean I don’t understand it. Thanks for trying though.

The basic logic is straightforward:

• The Second Amendment protects carrying firearms for self-defense.
• Hawaii had to show a historical tradition supporting its modern restriction.
• Hawaii pointed to laws involving poaching, trespass while hunting, and some post-Civil War laws, including Black Codes.
• The Court asked whether those laws were relevantly similar in why they existed and how they burdened the right.
• The Court concluded they were not.

That is a coherent application of the Bruen framework. You can disagree with the framework itself, but once you accept Bruen as the governing test, the outcome is fairly logical.


The Stanford article’s argument is essentially methodological. It says the Court described the historical laws too narrowly. For example, instead of viewing an anti-poaching law as “don’t hunt on someone else’s land,” the article says you could characterize it more broadly as “the government historically regulated armed entry onto private property.”


The problem with that broader characterization is that it risks becoming so general that almost any historical regulation can justify almost any modern regulation. That’s exactly what Bruen was trying to prevent. If you abstract enough, you can always find a historical cousin.


The majority instead asked whether the historical laws addressed the same problem:

• Anti-poaching laws: protecting landowners from unauthorized hunting and theft of game.
• Black Codes: disarming freed slaves through explicitly discriminatory laws.
• Hawaii’s law: preventing licensed citizens from carrying handguns for self-defense at businesses open to the public unless the owner affirmatively consented.

Those are materially different purposes.

 

[adrkwan]

Yep, even with the latest case on the "vampire rule", Wolford, the state of Hawaii provided historical laws that prohibited bringing arms onto private property. And even though I like the outcome because I do CCW and it will make it easier, it's hard for me to reconcile how the majority opinion waved away those historic laws so easily. Instead the majority opinion largely focused on how annoying it is for a CCW carrier to go throughout their day if they cannot carry into normal everyday establishments. I think that is a perfectly good argument on it's own, you are obviously de facto barred from carrying your weapon during normal day to day tasks if you can't go into any stores and especially gas stations etc. But if we look at the 18th century vs today, there wasn't even a concept of "publicly accessible private lands" in the same way that there is today. Back then you could restrict races or genders or whatever you want from your store at your whim and only through modern protections do we even have these kinds of spaces that allow access to all as base line. From a purely originalist perspective, the Bruen test as well as historic property rights are thrown out in Wolford in favor of a modern practical interpretation. So while I agree with it, it's very hard to be enthusiastic about the legal reasoning behind it. In previous 2a cases, the dissenters were the ones making the "practical" arguments that certain restrictions on guns should be allowed due to public safety concerns etc. So it's now completely inconsistent.

Totally agree with you. I like the results of Bruen but the test itself is a wonky. Justice Jackson likes to remind us of that in every dissent...

it sounds like you don't understand the arguments that were made in the case. I think this review explains the issues pretty well: https://www.stanfordlawreview.org/online/property-v-guns-the-level-of-generality-problem-in-wolford/

Nice article. That does describe the tension between 2A and common law property owner's rights. It does skip the other part about Black Codes which ignored the "mainstream" requirement for historic analogs. You could argue that requirement was shoehorned in but it seemed to be a a throw away argument.

 

[Jimi Jah]

non-government Militias are illegal in all 50 states

It didn't start out that way. Before our constitution was ratified, the people were the miltia.

 

[grandpapeepap]

Do you conclude from your statement that people who are not in the militia have no 2A rights? That would exclude most women, people over 45, and permanent resident non-citizens.

The prefatory clause is troubling, in all (political) directions. If you take it too seriously, you end up with the crazy thing I just wrote. You also end up with Miller, meaning only those weapons typically kept at home and in private possession yet suitable for militia use are protected under the 2A. If you don't take it seriously enough (like Scalia did in Heller), a new purpose of the 2A needs to be constructed to be able to interpret it. And that purpose is then just as likely to be right as wrong. See the intellectual jump required to go from Heller to Bruen, since suddenly the only purpose of the 2A that is enshrined in precedent (self defense in the home) was no longer sufficient.

Actually, all of the 2A is highly troubling as written. In reality, it is casuistic, an (over-) reaction to the excesses of the British trying to disarm the colonials. If the 2A and 3A were simply written as "Don't do what King George did", it would at least be clear what their real purpose was. Now it is 250 years later, we're no longer disenfranchised by military might, and we're no longer fighting to free our colonies from far-away and totalitarian rule. But somewhere underlying the 2A and the 3A are some important legal principles, for example that everyone has a right to life and liberty, and therefore to defend themselves against violence, and a right to enjoy the happiness of their possession, including a home without soldiers quartered in it. But instead of thinking through those underlying principles (and when/how/where/... they are applicable), we argue over the minutiae of what caliber the muskets were around 1770 (I'm exaggerating for comedy here, but not much).

And political grandstanding doesn't make it any better. On one side people claim that only guns turn a weakling into a real red-blooded American. On the other side people claim that all guns are evil. Both sides are wrong.

i only spoke of myself but theres also the national guard that is counted towards the militia as well with the US code so that would cover women and even over 45 year olds that signed up. but go off king

 

[RustVendor]

It didn't start out that way. Before our constitution was ratified, the people were the miltia.

I’m familiar with the level-of-generality argument. It’s an academic critique of Bruen’s methodology, not a statement of what Wolford actually held.


The issue wasn’t whether those historical laws existed. It was whether they were relevantly similar under Bruen’s “how and why” test. The majority concluded they were not. Hawaii argued the hunting laws reflected a broader tradition of regulating armed entry onto private property; the Court disagreed and held they were not sufficiently analogous to a modern default rule that effectively prohibits licensed self-defense carry at businesses open to the public.


As for the Black Code analogue, the Court expressly rejected giving weight to a Reconstruction-era law enacted to disarm freed slaves. Whether scholars think the majority chose the wrong level of generality doesn’t change the fact that the Supreme Court rejected those analogies.

Just because you think that the courts should be able to restrict our rights based on racist black code laws doesn’t mean I don’t understand it. Thanks for trying though.

The basic logic is straightforward:

• The Second Amendment protects carrying firearms for self-defense.
• Hawaii had to show a historical tradition supporting its modern restriction.
• Hawaii pointed to laws involving poaching, trespass while hunting, and some post-Civil War laws, including Black Codes.
• The Court asked whether those laws were relevantly similar in why they existed and how they burdened the right.
• The Court concluded they were not.

That is a coherent application of the Bruen framework. You can disagree with the framework itself, but once you accept Bruen as the governing test, the outcome is fairly logical.


The Stanford article’s argument is essentially methodological. It says the Court described the historical laws too narrowly. For example, instead of viewing an anti-poaching law as “don’t hunt on someone else’s land,” the article says you could characterize it more broadly as “the government historically regulated armed entry onto private property.”


The problem with that broader characterization is that it risks becoming so general that almost any historical regulation can justify almost any modern regulation. That’s exactly what Bruen was trying to prevent. If you abstract enough, you can always find a historical cousin.


The majority instead asked whether the historical laws addressed the same problem:

• Anti-poaching laws: protecting landowners from unauthorized hunting and theft of game.
• Black Codes: disarming freed slaves through explicitly discriminatory laws.
• Hawaii’s law: preventing licensed citizens from carrying handguns for self-defense at businesses open to the public unless the owner affirmatively consented.

Those are materially different purposes.

Did you use AI to make a summary? You didn't catch the nuance in the arguments made about the historical laws, some of which were explicit in that you could not bring arms onto private property. One of the biggest concerns with this was one of safety.

 

[Gawernator]

Did you use AI to make a summary? You didn't catch the nuance in the arguments made about the historical laws, some of which were explicit in that you could not bring arms onto private property. One of the biggest concerns with this was one of safety.

I didn’t miss the nuance. I just don’t think it changes the analysis.

Hawaii made essentially the same argument—that the historical laws reflected a broader tradition of regulating armed entry onto private property for safety and property-rights reasons. The majority considered that and rejected it under Bruen’s “how and why” framework.

The issue isn’t whether historical laws restricting armed entry existed. It’s whether they are sufficiently analogous to a modern law that presumptively criminalizes licensed self-defense carry at businesses open to the public. The Supreme Court concluded they were not.

So this isn’t a matter of me missing the nuance; it’s a disagreement with the majority’s legal reasoning. That’s a fair criticism to make, but it’s different from saying the Court overlooked those historical laws.

 

[Gawernator]

Totally agree with you. I like the results of Bruen but the test itself is a wonky. Justice Jackson likes to remind us of that in every dissent...



Nice article. That does describe the tension between 2A and common law property owner's rights. It does skip the other part about Black Codes which ignored the "mainstream" requirement for historic analogs. You could argue that requirement was shoehorned in but it seemed to be a a throw away argument.

The author is just throwing a fit because they don’t want gun rights, on a logical basis they’re wrong.

The article’s problem is that it frames the historical tradition at such a high level of generality—“government regulation of armed entry onto private property”—that it washes out the distinctions Bruen requires courts to examine.

The colonial laws dealt mainly with hunting, gunfire, taking game, damage to land or livestock, and risks to persons from poaching. Hawaii’s law criminalized peaceful licensed concealed carry in ordinary businesses open to the public. Those laws are not meaningfully alike merely because both concern guns and private property.

More importantly, the Supreme Court did not overlook Brady’s argument. The majority cited her article and assumed, for argument’s sake, that “enclosed” property could include some property open to the public and that Hawaii’s analogues were known and accepted. It still held that the gap was too wide.

So this is not a case of the Court failing to understand the nuance. The Court understood the broader armed-entry and safety theory and rejected it because the historical laws differed materially in both how and why they burdened the right.